News
20 January 2009
Reform of Easements and Covenants
The problems created by easements and covenants often make it difficult for purchasers, landowners and developers to effectively identify, enforce, modify and discharge interests that either affect or benefit their land.
The laws relating to easements and covenants are archaic and long due an overhaul, and the Law Commission is proposing to modernise the current regulations and requirements by way of substantial reforms. With the aim of making it easier for purchasers to identify third party rights and remove many obstacles to development caused by easements and covenants, the proposed reforms include:
- a rationalisation of the law relating to the creation and extinguishment of easements.
- replacing positive and negative covenants with ‘Land Obligations’
- modernising the statutory means of discharging and modifying restrictive covenants and applying the new rules of easements and Land Obligations.
Easements
An easement grants rights over a piece of land for the benefit of another piece of land and can also include limiting what a land owner may do with his own land.
Under current law:
- easements can be created too easily or by mistake
- easements created informally and not by deed can be overriding interests that are difficult to detect on purchase, but will affect the land
Covenants
Covenants relating to property are typically promises made in relation to and will either restrict what a land owner may do on his own land, or require action and often expenditure by a land owner.
Under current law:
- The burden of a positive covenant does not bind successors in title of land. The methods used to overcome this are complex and often do not work
- It can be difficult to identify the land benefiting from a restrictive covenant
- Contractual liability between the original parties to a covenant survives changes in ownership in land.
Land Obligations
The proposed Land Obligations allow covenants to run with the land beyond the ownership of the original contracting parties. The powers of the Lands Tribunal would be extended to vary or discharge these.
A Land Obligation would be created over a registered title, the benefit and burden of the obligation would be clearly identified on a related plan and the interest of both parties would be noted on their respective titles.
A benefit of the proposal would be transparency from the outset of the obligations that affect a title. It is further proposed that once an obligation is registered against a title, transfer of the title will automatically include a transfer of the obligation.
A report and draft Bill are expected to be issued by 2010, so it is some time before purchasers, landowners and developers will benefit from the proposed changes.
In the mean time, please call Elayna Smith on 01782 205 000 if you have any concerns relating to easements and covenants on land that you own or are considering purchasing.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances
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